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SECTION

CHAPTER XXI.

DECLARATIONS IN TRESPASS. (a)

I. FOR INJURIES TO THE PERSON.

1. For an assault, battery, and wounding.

2. For riding against the plaintiff.

3. For false imprisonment.

4. For criminal conversation.

5. For an assault, &c., on the plaintiff's wife.

6. By husband and wife for an assault, &c., on the latter.

7. For debauching plaintiff's daughter.

11. FOR INJURIES TO PERSONAL PROPERTY.

III.

1. De bonis asportatis.

2. For chasing sheep, &c., with special damage.

3. For shooting a dog.

4. For running defendant's cart against the plaintiff's horse and
killing it.

5. For running a carriage against the plaintiff's carriage; whereby
he was thrown out, his carriage damaged, and himself injured,
&c.

6. For seizing and detaining plaintiff's cart and horse and convert-
ing an halter.

7. For cutting a rope, whereby plaintiff's boat was driven on shore
and damaged.

FOR INJURIES TO THE REALTY.

1. For trespass in plaintiff's dwelling house and seizing goods
therein.

2. For an expulsion.

3. Trespass quare clausum fregit, stating various trespasses and

injuries.

4. For breaking up a railroad, and making a tramroad across the

same.

5. Trespass for mesne profits and costs of ejectment.

(a) See, in general, as to this form of action,
ante, p. 21 to 25; Steph. N. P. Com. Dig.; Selw.
N. P. Bac. Ab.; 2 Stark. Ev.; Harr. Index, T1-
TLE "Trespass."

The recent statute of this State, ante, p. 17, au-
thorizes an action on the case for injuries to the
person or personal property, &c. See Forms in
Case.

For injuries to the person.

SEC. I. FOR INJURIES TO THE PERSON.

1. For Assault Battery, and Wounding. (b)

Commencement as ante, 181, Form 1. For that (c) the defendant, on the day of (d) at [&c.], with force and arms (e) assaulted (g) the plaintiff, and beat, bruised, [pushed, dragged and pulled about, kicked

A. D.,

(b) See, in general, Bac. Ab. Assault; Com. Dig. Battery; Burn, J. Assault; 1 Selw. N. P. 27; 1 Chit. G. P. 37; 3 Bla. Com. 120; 1 Steph. N. P. Tit. "Assault and Battery." 1. An Assault is an attempt with violence to do a person some bodily harm, as by holding up a fist, striking at another with a stick which does not touch the latter, or throwing any thing at a person which misses him, or by any similar act of inchoate violence, showing an intention to do injury, and the aggressor being within such a distance from the party assaulted, that the intention might possibly be executed. The quo animo is material in the case of an assault; and, therefore, where a party half drew his sword, but said “if it were not assize time I would run you through the body," it was held there was no assault, the words negativing an intention to do violence; 1 Mod. R. 3; Bac. Ab. Assault, A. The riding after a person and obliging him to run away into a garden, to avoid being beaten, is an assault ; Morton v, Shoppee; 14 Eng. C. L. Rep. 355. Mere words of abuse and threats do not constitute an assault; 1 Chit. G. P. 37. In Stephens v. Myers, 19 Eng. C. L. Rep. 414, TINDAL, C. J. said, "It is not every threat, when there is actually no personal violence, that constitutes an assault: there must, in all cases, be the means of carrying the threat into effect. The question I shall leave to you will be whether the defendant was advancing at the time in a threatening attitude to strike the chairman, so that his blow would have almost immediately reached the chairman if he had not been stopped, then, though he was not near enough at the time to have struck him, yet if he were advancing with that intent, I think it amounts to an assault in law. If he were so advancing, that within a second or two of time he would have reached the plaintiff it seems to me it is an assault in law. If you think he were not advancing to strike the plaintiff, then only can you find your verdict for defendant, otherwise you must find it for plaintiff and give him such damages as you think the nature of the case re quires."

2. A Battery is any unlawful touching another by the aggressor himself with his hand or any instrument, or by his servant by his command, or by any substance put or continued in motion by him; 1 Chit. Gen. Prac. 37. If the injury arise from inevitable or unavoidable accident or necessity, and there be no want of care, no action lies; as if a horse, being frightened, run away with the rider and hurt the plaintiff, or the injury arise from the accidental explosion of a gun, or in cutting wood with an axe, &c. But the act need not be wilful to maintain the action, nor is the degree of violence material; 3 East, 602; Sel. Bac. Ab. &c., ubi supra. Bruises are where the skin is not broken.

3. A Wounding consists in giving another a cut or even a scratch opening the flesh; 1 Chit. G. P. 38; or breaking the skin; 25 Eng. C. L. Rep. 597.

4. A Mayhem is defined to be the deprivation of a member proper for defence in fight, and which are not only an arm, leg, finger, eye, and a fore tooth, but also some others; but not as it has been said, a jaw tooth, or the ear, or a nose, because they have been supposed to be of no use in fighting; 3 Bla. Com. 121.

(c) The word "whereas," here would be demurrable.

"Made an

(d) The exact day is not material. assault" on divers days, would be bad on special demurrer; aliter it seems, if the allegation be "assaulted" on divers days; see 6 East, 395. There should be a separate count for each distinct assault on several occasions on the same day, or different days. Upon one count for one assault, no second assault can be proved; see 1 Saund. 299, note 6; 1 Camp. 473.

(e) Vi et armis seems necessary; at least it is always safest to insert it. 1 Chit. Pl. 8 Am. ed. 387.

(g) Under a count for an assault and battery, the former only may be proved; Bro. Ab. Tres pass, pl. 40; cit. 2 Chit. Prec. 715,

For injuries to the person.

wounded ()] and ill-treated him, whereby (i) the plaintiff became, and was, sick, sore, lame and disordered, and so continued for a long time, to wit, thence hitherto, during all which time the plaintiff suffered great pain, and was prevented from transacting his necessary affairs and business, and also thereby, the plaintiff was obliged [to incur, and did then and there incur, or "to subject himself to liability to pay,and became liable to pay," (k)] great expenses, to wit, to the amount of — dollars, in and about the endeavoring to be cured of the injuries so sustained by him; and thereby also, divers large quantities of blood which issued and flowed from the said wounds of the plaintiff, ran and flowed on the clothes and wearing apparel, to wit, one coat and one waistcoat, one pair of trowsers and one shirt of the plaintiff, wherewith the plaintiff was then clothed, of the value of dollars, and greatly soiled and damaged and spoiled the same, so that the same thereby became of little or no use or value to the plaintiff, and other wrongs (1) to the plaintiff then did; to wit, at the county aforesaid, against the peace and dignity of the state of Ohio, and to the damage. of the plaintiff of dollars; and therefore he brings his suit, &c.

2. For Riding against the Plaintiff.

For that, the defendant, on [&c.], at [&c.], with force and armis, and with a certain horse, assaulted the plaintiff, and then and there rode [or "drove," as the case may be,] the said horse upon, against, and over the plaintiff, and then and there violently knocked him down to and upon the ground, and trod and trampled upon the plaintiff, and then and there, with the said horse, gave and struck the plaintiff divers blows, and kicked, bruised and wounded him, whereby, [&c., conclude as in Form 1.

3. For False Imprisonment. (m)

For that the defendant, on [&c.], at [&c.], with force and arms assaulted the plaintiff, and then and there seized and laid hold of, and beat the plaintiff, and

(h) Use only such of these words as are war- 64, 87; cit. 2 Chit. Prec. 715. Semble, damages ranted by the fact; see supra, note (b).

(i) Adopt only so much of the following statement of damage as can be proved. In cases of slight assaults, without special damage, proceed at once to the alia enormia.

(k) These words are proper if the expenses were not paid before the action; see Pritchett v. Boevey, 1 C. & M. 775; cit. 2 Chit. Prec. 715.

(1) The alia enormia does not appear to be an essential allegation. It is no part of the declaration, and no facts can be given in evidence under it, which might consistently with decency be stated in the declaration; Peake, R. 46, 62; 3d ed.

and matters naturally arising from the act complained of and stated, may be proved; Bull. N. P. 89; 1 Chit. Pl. 8 Am. ed. 397; 2 Eng. C. L. Rep. 313; 17 Pick. 78; 12 Wend. 39; 3 Watts, 270; 1 Mass. 12.

(m) What shall be deemed a false imprisonment, see 1 Chit. G. P. 47; 2 Stark. Ev. 1111; 3 Bla. Com. 127, 138. Bare words do not in general amount to an imprisonment. There must be some act whereby the plaintiff was deprived of his personal freedom for some portion of time, however short; there must be a laying hold of the person, or some actual restraint on submission

For injuries to the person.

with great force and violence pulled and dragged him about, (n) and also then and there imprisoned the plaintiff, and kept and detained him in prison there for a long time, to wit, then following, [or then and there forced and compelled the plaintiff to go, and caused him to be forcibly conveyed in custody in and along divers public streets and highways to a certain police station, and there imprisoned the plaintiff and kept and detained him in prison there without any reasonable or probable cause whatsoever, for a long space of time; to wit, for the space of- then next following, to wit, at the county aforesaid; at the expiration whereof, the defendant forced the plaintiff to go, and caused him to be forcibly conveyed in custody to a certain police office, and there again imprisoned the plaintiff for a long time, to wit, then following, to wit, at the county aforesaid," of course the above statement must depend on and be varied by the facts,] contrary to law [and under a false and unreasonable assertion, color and charge, that the plaintiff had committed an offence punishable by law, to wit, that he had committed felony, (o)] whereby the plaintiff was then and there not only hurt, bruised and wounded, and suffered great anguish and pain of mind and body, and was prevented from attending to his lawful affairs, but was also thereby then and there greatly exposed and injured in his credit, reputation and circumstances, and was subjected and put to divers expenses, to wit, to the amount of dollars, in order to obtain, and in obtaining his liberation from the said imprisonment, to wit, at the county aforesaid, (p) [or “in order to obtain his liberation from the said imprisonment was obliged to find and procure and did procure bail, to wit, E. F., and G. H., for his appearance before a justice of the peace, to answer a certain false and unfounded charge, then and there made against him by the plaintiff, to wit, at the county aforesaid;"] and other wrongs, [&c., conclude as in Form 1.]

without force; and in this instance actual laying on the hand is not necessary; 2 Stark. Ev. 7 Am. ed. 1111, 1112. If an officer or other person say, "You are my prisoner, &c." or state that he holds a warrant, and that the party must accompany him, and he submit, in either case there is a sufficient imprisonment; id. and note (y); Bull. N. P. 62; 12 Eng. C. L. Rep. 171; 17 Eng. C. L. Rep. 244; and see 21 Eng. C. L. Rep. 449. Where npon a magistrate's warrant being shown to the plaintiff, he voluntarily and without compulsion attended the constable, held no imprisonment; 2 N. R. 211. And in trespass for false imprisonment, proof must be given of circumstances from which the court and jury may decide whether there was or was not a restraint or detention of the person; and it is not enough for witnesses to swear that they considered the plaintiff was in custody, and thought that he was under restraint, nor is it enough to show that the defendant at a

police office stood before the plaintiff and said, "You cannot go away till the magistrate comes," if it appear that he relinquished that attitude and went to another part of the office before the plaintiff had made any attempt to depart; 25 Eng. C. L. Rep. 512. An imprisonment includes an assault; but a mere arrest does not constitute a battery; see Stark. &c. supra. The forcible detention of a party in the street against his will is an imprisonment.

(n) If the plaintiff were handcuffed, state the
fact thus," and then and there put certain hand-
cuffs on the plaintiff's wrists, and handcuffed the
plaintiff and kept him so handcuffed for a long
time, to wit,
hours then following;"

(o) See 2 M. & Sel. 77.
(p) Form of allegation if
expenses ; ante, 592, n. (k).
not specifically laid, can be
ges; see ante, note (¿).

plaintiff has not paid No special damage recovered as dama

For injuries to the person.

4. For Criminal Conversation. (q)

For that the defendant, on [&c.], at [&c.], and on divers other days and times between that day and the commencement of this suit, with force and arms assaulted ———, then and still being the wife of the plaintiff, and then and there debauched and carnally knew the said

whereby her affection for the plaintiff was alienated and destroyed, and he was and is deprived of, and hath wholly lost the comfort, fellowship and society of his said wife, and of her aid and assistance in his domestic affairs, which he ought to have had and otherwise would have had, and other wrongs, [&c., conclude as ante, Form 1, p. 592.]

5. For an Assault, &c., on the Plaintiff's Wife.

For that the defendant, on [&c.], at &c.], with force and arms assaulted then and still being the wife of the plaintiff, and then and there beat, bruised, wounded and ill-treated the said , whereby the said then became and was sick, sore and disordered, and so continued for a long time, to wit, for the space of then next following, whereby the plaintiff during that period was deprived of the comfort, company and fellowship of his said wife, and of her aid and services in his domestic affairs, and the plaintiff during the said last mentioned period, did necessarily incur divers expenses, to wit, to the amount of dollars, in and about the curing and nursing and taking care of his said wife upon the said occasion, and other wrongs, [conclude as ante, Form 1. p. 592.]

6. By a Husband and Wife for an assault, &c. on the Latter.

9

For that the defendant, on [&c.], at [&c.], with force and arms, assaulted the said then and still being the wife of the said A. B., and then and there beat, bruised, wounded and ill-treated her, whereby (r) she became and was sick, sore, lame and disordered, and so continued for a long time, to wit, then following, during which time she suffered great pain, and other wrongs, [&c., as in Form 1, ante, p. 592, concluding to the damage "of the plaintiffs."]

(q) See form in Case, ante, 471.

(r) Care must be taken where the wife is joined as a plaintiff, not to state any thing which in law

or fact is a damage to the husband only, as the loss of service, or expense; ante, 87, 88.

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